An originalist's view.

Byline: The Register-Guard

U.S. Supreme Court Justice Antonin Scalia dropped into Oregon for a visit last weekend, leaving behind a warning to all those, including fellow conservatives, who view the Constitution as a hammer that can be used to pound home their passionately held convictions.

Don't do it, Scalia said. Don't even try.

Scalia is the best known member of that body of jurists often referred to as originalists. They interpret the Constitution by applying what they regard as the original intent of its framers, and they abhor the idea of a Constitution that, in Scalia's words, "morphs as we look at it."

In his speech at Lewis & Clark Law College, the brilliant, feisty justice described the Constitution as a solid, fully formed statue and not "an empty vessel that is to be filled up by each generation's passionate beliefs." That's true, he said, even when the document's original intent is repugnant to an originalist interpreter.

Many judges and legal scholars take a different approach, and view the Constitution as a living document that can, and must, be reinterpreted within limits to reflect changes in society. But even those who disagree with Scalia - and this newspaper is often among their number - must respect the integrity of the justice's belief that the law must be dispassionately applied, regardless of personal beliefs.

That conviction recently prompted Scalia to observe that judges who follow the Roman Catholic church's teaching that capital punishment is wrong should resign. The justice is a devout Catholic, yet he believes the death penalty should be considered constitutional because "it's absolutely clear it was constitutional in 1791."

Scalia also provided a key vote in a ruling that flag burning is a form of free speech protected by the Constitution. ``I do not like scruffy people who burn the American flag,'' Scalia said. ``Regrettably, the First Amendment gives them the right to do that.''

In his speech at Lewis & Clark, Scalia offered encouragement to Oregonians who resent the federal government's efforts to overturn the state's landmark assisted suicide law. The justice made it clear he believes the law should not become the focus for a constitutional battle because it is a matter of state's rights. Oregonians, Scalia said, should decide on their own whether the terminally ill have the right to take their own lives.

When a woman in the audience called out, "We did that twice," referring to two statewide votes that upheld the law, Scalia had this succinct response: "That's fine. You don't hear me complaining about Oregon's law."

One can only hope John Ashcroft was listening. The U.S. attorney general issued an order to revoke the licenses of Oregon physicians who prescribe lethal doses of drugs to terminally ill patients. A federal judge has issued a restraining order pending appeal.

It's fascinating - and revealing - to reflect on the difference between the respective approaches of Scalia and Ashcroft, both bedrock conservatives. Scalia acknowledges that the Constitution's protection of state's rights trumps whatever his own personal beliefs may be on assisted suicide, and it seems safe to assume those beliefs are not supportive.

Ashcroft, his vision blurred by ideological fervor, sees no such distinction. So he forges ahead with a heavy-handed effort to deny terminally ill Oregonians the right that was twice given them by the state's voters: to make their own choices about life and death.

It isn't only conservatives such as Ashcroft who put ideology above the Constitution. As Scalia noted in his speech, both liberals and conservatives seem equally inclined "to distort the Constitution" for their various ends.

"I say a pox on both their houses," Scalia said.

When it comes to a clear matter of state's rights and a U.S. attorney general intent on imposing his will upon Oregonians, we're inclined to say a loud amen.